Russian Control? State Attribution for Internationally Wrongful Acts committed by Individuals in Georgia

Posted on July 7, 2022 by Mark Kersten

The following is a guest post by Ananya Mukherjee, a graduate of the West Bengal National University of Juridical Sciences, Kolkata who currently works with the Indian Institute for Human Settlements on higher education policy in India. Ananya is also an incoming MPA candidate at Columbia University.

(Photo: Russian soldiers leaving South Ossetia following the 2008 war with Georgia. AP/Atlantic Council)

In 2016, and for the first time since its inception, the International Criminal Court (ICC) opened an investigation into activities involving non-African states. The ICC is investigating alleged crimes against humanity and war crimes committed in Georgia during an international armed conflict (IAC) between July and October 2008. In June 2022, the ICC issued three warrants of arrest for Russian-backed officials from South Ossetia on allegations of war crimes committed during the war. The 2008 Georgian War involved a combination of inter-state and intra-state conflicts. The current post deals with the conflict between the Georgian military, on one hand, and the South Ossetian and Abkhaz military units on the other.

The ICC’s mandate to prosecute and hold individuals responsible for gross humanitarian law violations may be triggered in case of war crimes committed during an IAC. For the conflict between the Georgian, and the Abkhaz and South Ossetian forces to be considered international, it is crucial to demonstrate Russian influence over such forces. Georgia contends that “Russia exercised sufficient control over the Abkhaz/South Ossetian forces”. Russia claims otherwise.

The challenge of attributing internationally wrongful acts committed by individuals to a ‘state’ is resolved through internationally recognized tests of control. This post analyses the two most widely accepted modes of attribution: theeffective control test and overall control test. In “The General Theory of Law and State”, Hans Kelsen remarked that the effective control test is conventionally adopted for determining state attribution and attracting the international legal responsibility of state(s). This stringent test was put forth by the International Court of Justice (ICJ) in the Nicaragua case. Finding it to be unpersuasive, the International Criminal Tribunal for the Former Yugoslavia (ICTY) developed the overall control test in the case of Tadic.

Distinguishing the Control Tests

The ICJ in Nicaragua examined the United States’ responsibility for acts of paramilitary groups or contras on Nicaraguan territory. To attract responsibility under this test, the state shall have, in addition to paying or financing the private actors and coordinating or supervising their activities, issued specific instructions to the individuals for the unlawful acts. The requirement of “specific instructions” for each “internationally wrongful act” is where this test often comes unstuck. For instance, the lack of evidence of America’s involvement in directing / instructing the contras led to it ultimately escaping international responsibility.

Conversely, the ICTY laid down a new method of attribution in Tadic. It relied on the case of Loizidou v Turkey, which related to Turkey’s supposed responsibility in denying a party access to private property located in Northern Cyprus, which was under Turkish rule at the time. The European Court of Human Rights (ECHR) held that it was not necessary for Turkish authorities to exercise “detailed control over specific policies and actions” over the Turkish Republic of Northern Cyrus to establish Turkey’s responsibility. In Tadic, the overall control test not only dealt with equipping, financing or training, and providing operational support to a group, but also coordinating or helping in the general planning of its military or paramilitary activities. The ICTY held that,“If it is under the overall control of a State, it must perforce engage the responsibility of that State for its activities, whether or not each of them was specifically imposed, requested or directed by the State.”

Continue reading →
Posted in Georgia, Guest Posts, International Humanitarian Law, International Law, War crimes | Leave a comment

Money Laundering is predicated on Human Rights Violations. It should be treated as such.

Posted on June 25, 2022 by Mark Kersten

A version of the following was article was originally published at the Globe and Mail.

(Image: The Globe and Mail)

 The long-awaited Cullen Commission’s final report into money laundering in British Columbia, released this month by B.C. Supreme Court Associate Chief Justice Austin F. Cullen, was as devastating as it was illuminating. In the coming weeks, experts and policy-makers will decipher the report and make pronouncements on how provincial governments and Ottawa can better prevent and prosecute money laundering. In doing so, however, they must consider the many ways in which money laundering is not just an economic crime, but a human rights issue. Money laundering is not a victimless crime.

In its 1,800 pages of facts and findings, the Cullen Commission concluded that the laundering of billions of dollars had gone “unchecked” since at least 2012, that successive B.C. governments had ignored the problem, and that the RCMP’s efforts to investigate money laundering were woefully inadequate. While the commission did not focus on human rights, understanding how money laundering is a human rights issue is a crucial step if authorities are to wake up to the harm this crime does and adequately address it.

In my work on political violence and mass atrocities, money laundering comes up regularly as a commonplace transnational organized crime, one that fuels human rights abuses. It is not unusual for people to assume that money laundering primarily happens in countries with inadequate legal frameworks, porous regulations, long-standing corruption, and weak rule of law. But that is far from the truth.

Terrorists, traffickers, autocrats and corrupt foreign politicians see Canada as an ideal place where they can hide and “clean” their ill-gotten gains.

According to testimony given to the Cullen Commission by professor Jason Sharman of the University of Cambridge: “As a multicultural society with a large stable financial sector, there’s temptation for foreign corrupt officials to use the Canadian financial system or perhaps bits of it, like Canadian shell companies, to help in laundering money derived from corruption offences committed in other countries.” A 2019 U.S. State Department report listed Canada alongside China and Afghanistan as a “major money laundering country.” Money laundering in Canada even has its own name: “snow-washing”.

Canadian institutions have been ignoring their complicity for a long time. Years ago, an investigator told me that a Canadian bank he had worked for had willfully ignored his advice to reject the business of an alleged organized criminal from a foreign state who had reportedly been involved in violent crimes. It was shocking, but not surprising. As “one-stop shops” welcoming dirty money, Canadian banks have profited from money laundering for years, and done little to address it. Canada is known in international crime circles as a safe place for money launderers, where questions often won’t be asked and evidence of the criminal sources of funding will be regularly ignored.

Canada is open for business and closed for accountability.

Continue reading →
Posted in Canada, Human Rights, Money Laundering | Leave a comment

Investigating all atrocities, including any committed by Ukrainian soldiers, can undercut Putin’s war crimes propaganda

Posted on June 13, 2022 by Mark Kersten
A war crimes investigator in Ukraine (Photo: Deusche Welle)

According to Ukraine’s Prosecutor General Iryna Venediktova, 15,000 alleged war crimes have been reported since Russia’s invasion of Ukraine three months ago. Hundreds more are being reported every day. The numbers reflect the brutal toll of Russia’s invasion. In response, Kyiv, its allies, and the International Criminal Court (ICC) have launched investigations into possible atrocities committed in Ukraine. All, however, are mum on whether they are investigating alleged war crimes committed by Ukrainian forces. It is in Kyiv’s interest to ensure that all alleged atrocities committed are thoroughly investigated and prosecuted, including any that its own soldiers may have perpetrated.

The decision of Western states and the ICC to investigate Russia’s crimes represents a sliver of humanity in the face of Moscow’s unspeakable cruelty and capacity for atrocity. To a far lesser extent than allegations levied against Moscow, there have been reports of war crimes committed by Ukrainian forces as they seek to repel Russia’s invasion and occupation of Ukrainian territory. Human Rights Watch, for example, offered evidence of Russian prisoners of war being beaten and shot by Ukrainian forces. Prior to Russia’s invasion, the ICC Prosecutor also determined that Ukrainian government forces had committed crimes against detained Russian and Russian-backed soldiers, albeit less severely than those committed by their counterparts.

Even in the most asymmetrical conflicts, it is never the case that only one side commits atrocities. The nature of war breeds excesses, ones felt most directly and brutally by civilians. Yet states and international organisations have a hard time investigating and prosecuting those parties they believe are on the “good” side of war, especially in the case of ongoing conflicts.

The ICC, for example, has the propensity of only investigating and prosecuting one party to a conflict. Historically, the Court’s Prosecutor has chosen a party – most often the winning side or one which Western powers support – and investigated its enemies.

In Ukraine, ICC Prosecutor Karim Khan has been eager to demonstrate his solidarity with Ukraine, traveling to the country and appearing with government officials, including President Volodymyr Zelenskyy, while noting that Russia has declined to cooperate with the ICC. He has also illustrated his keen interest in working with Western powers that are investigating Russian atrocities and who have earmarked funds to investigate Moscow’s alleged crimes. It is with these powerful states that momentum on justice resides.

The ICC Prosecutor’s very public siding with Ukraine and Western powers has some supporters of the Court anxious. For example, Céline Bardet of We Are Not Weapons of War has articulated that “[t]he war in Ukraine … carries the risk that the ICC could pay a high price, in the medium or long term, for not clearly establishing safeguards against being seen as a tool of one side.”

Few believe that the ICC will bring forward allegations against Ukrainian soldiers or authorities, even if doing so is found to be warranted. Just weeks into the war, the Court announced arrest warrants for another situation: the 2008 war in Georgia. Despite allegations of atrocities committed on all sides of that conflict, each ICC warrant was for a Russian-backed official from South Ossetia.

Continue reading →
Posted in International Criminal Court (ICC), International Criminal Justice, Russia, Ukraine, Vladimir Putin, War crimes | 3 Comments

Calling abuses against migrants in Libya what they are: war crimes and crimes against humanity

Posted on May 17, 2022 by Mark Kersten

The following is the second installment of a two-part guest post on atrocities against migrants by Alessandro Pizzuti and Alice Giannini. Alessadro is the co-founder of UpRights. Alice is a lawyer and PhD student in criminal law at the Universities of Florence and Maastricht and the Head of StraLi’s Cyber Team and a member of the International Criminal Law team.

(Photo: AFP)

In the first part of this post, we reconstructed some of the challenges behind the International Criminal Court (ICC) Prosecutor’s conclusion that the abuses against migrants in Libya may qualify as war crimes and crimes against humanity. This second post will focus on some of the implications underlying such a conclusion in terms of responsibility and duties of states to prosecute such crimes.

Background

The war crimes and crimes against humanity suffered by migrants in Libya’s Department for Combating Illegal Immigration (DCIM) Detention Centres are the result of a cyclical violence. From a purely causal perspective, such crimes are predicated on the contributions of multiple actors, which include: (i) traffickers and smugglers facilitating the journey to Libya; (ii) armed groups in charge of DCIM detention centres directly responsible for abuses; (iii) staff of Libyan Coast Guard (LCG) ensuring the interception and transfer of migrants to detention centres; and (iv) European actors assisting the LCG to redirect migrants to Libya.

The contribution of European actors – including Italian and Maltese authorities – in bolstering the ability of the LCG to intercept migrants at sea through the provision of assets, equipment, maintenance, and trainings, has been attested to by multiple reports of international organisations and NGOs. These include the UN Secretary-General (here, paras.18-21, here, para.21), OHCHR (here, p.23), UNSMIL (here, pp.14-15), the COE Commissioner for Human Rights (here, pp.20-21 and here, pp.23-24),  Amnesty International (here, pp.9-14 and here, pp.11-13, 22-24), and ECCHR/FIDH/LFJL (here, pp.41-46). Official documents from the Italian MFA confirmed the role of Italian officials in coordinating the LCG during rescue missions (here, p.24).

State responsibilities and duties to punish international crimes 

While the qualification of the crimes committed against migrants in Libya as war crimes and crimes against humanity has symbolic value, it also carries very specific practical implications. Once these abuses are elevated – qualitatively or quantitatively – to the status international crimes, they are no longer confined within the sometimes artificial schemes of (extra)territorial jurisdiction and admissibility that govern human rights violations. This is especially important when such crimes are the result of conduct that is committed across national borders or which occur in failed States.

Since it engages personal, rather than State responsibility, international criminal law transcends state borders. It reconstructs the fragmented picture offered by the jurisdictional paradigm of human rights obligations of States into a more composite and plain dynamic. This dynamic is based on the effects of individual contributions to specific crimes, considered as whole. Under the ICC legal framework, such contributions are articulated through the modes of liability set out in Article 25(3) of the ICC Statute.

In the case of the crimes committed against migrants in Libya, specific emphasis should be put on Article 25(3)(d)(ii) of the ICC’s Rome Statute, which criminalises any form of contribution to the commission of a crime under the ICC Statute by a group with a common purpose provided in the knowledge of the group’s intention to commit the crime. Considered a residual form of accessorial responsibility, Article 25(3)(d) focuses on the assistance, either internal or external, to a group of persons acting with a common purpose. In terms of the actus reus and mens rea, the requirements of Article 25(3)(d) of the Statute are lower than the other forms of liability set forth in Article 25(3).

Continue reading →
Posted in European Union (EU), Immigration, Libya, Libya and the ICC, Migration, Refugees | Tagged , | 1 Comment

Crimes against migrants and asylum seekers in Libya: Here’s how the ICC Has Jurisdiction

Posted on May 6, 2022 by Mark Kersten

Alessandro Pizzuti and Alice Giannini join JiC for this two-part guest post the International Criminal Court and its possible investigation into crimes committed against migrants in Libya. Alessadro is the co-founder of UpRights. Alice is a lawyer and PhD student in criminal law at the Universities of Florence and Maastricht and the Head of StraLi’s Cyber Team and a member of the International Criminal Law team.

Migrants off the shore of Libya in 2017 (Photo: AP)

On 28 April 2022, during a regular briefing to the UNSC on the situation in Libya, the Prosecutor of the International Criminal Court (ICC) reported that crimes committed against migrants in Libya may amount to crimes against humanity and war crimes and fall within the ICC jurisdiction. Never before had the Prosecutor been so clear on the nature of these crimes or his Office’s intention to pursue such a line of investigation. These conclusions are consistent with the Article 15 Communication filed on 17 January 2022 by UpRights, Adala for All, and StraLi, referred in the Prosecutor’s report. In this two-part blog post we first address the key role of the nexus between the crimes and the conflict in Libya. This will serve to assess, on one hand, the qualification of the crimes committed against migrants as war crimes and, on the other hand, the ICC’s jurisdiction. In our second piece, we address the potential implications of the identification of such conduct as international crimes.    

As reflected in our January 2022 Communication, the Libyan conflict has deeply affected the migration dynamics in the country (Communication, paras.24-117). Originating from the 2011 revolution, the conflict has been characterized by a lack of a functioning government and the proliferation of armed groups. The specific characteristics of the Libyan crisis have been fuelled continuous unrest, which enabled armed groups to perpetrate crimes against migrants in detention centres.

It is in this context that the mass migration through Libya towards Europe has allowed for an already vulnerable population to become the subject of international crimes. Indeed, the fragmentation of power shaped the smuggling/trafficking industry in Libya. Between 2012 and 2017, armed groups used their position to gradually take over the business of operating detention centres, including those under the nominal control of the Department for Combatting Illegal Migration (DCIM). From 2017 onwards, with growing pressure from European States to stem migration flows from Libya, the same armed groups re-focused their activities on migration control, using DCIM detention centres to prevent migrants from crossing the Mediterranean Sea.

War crimes

The abuses committed against migrants in DCIM Detention Centres between 2017 and 2021 qualify as war crimes (Communication, paras.129-402). The Communication identifies as concrete examples six DCIM Detention Centres where such crimes have allegedly been committed: Abu Salim, Tarik al-Matar, Tarik al-Sikka, Al-Mabani, Tajoura, and Al Nasr. These centres are under the effective control of armed groups and have hosted thousands of migrants, a large part of whom were intercepted at sea by the Libyan Coast Guard, and who have been subject to regular violence and abuses. Being closely linked to the conflict in Libya, these abuses meet the requirements provided under Articles 8(2)(c) and (e) of the Rome Statute.

Continue reading →
Posted in ICC Prosecutor, Immigration, International Criminal Court (ICC), Libya, Libya and the ICC, Migration, Refugees | Tagged , | 3 Comments

The Forgotten Victim of War: The Natural Environment in Ukraine

Posted on May 2, 2022 by Mark Kersten

David Krott joins JiC for this guest post on damage inflicted by the war in Ukraine on the natural environment, and its possible treatment by international criminal law. David is as a research assistant at the FH Aachen (Germany) and am PhD candidate at the Vrije Universiteit Brussels, specialising in international environmental criminal law. David has previously written for JiC on climate change and international law here.

A sign demarcating a radioactive zone near Chernobyl Power Plant (Photo: BBC)

Fires in the closed and highly radioactive exclusion zone around Chernobyl, the leak of ammonia from a factory in Sumy, and missiles hitting Europe’s largest nuclear power plant in Zaporizhzhia. These stand as examples of the damage wrought upon the environment by the ongoing war in Ukraine. They represent the harm and threat potential for humans found within these acts of environmental warfare. They also underline how closely warfare is linked with human suffering and environmental harm.

The war in Ukraine has challenged international relations and brought unspeakable harm to the population of Ukraine, its culture, and its infrastructure. In these kinds of conflicts, the natural environment often recedes into the background. But the environment in Ukraine is still suffering a great deal under the war. The threat of environmental harm in Ukraine reaches far across the country’s borders and should be viewed through the eyes of international criminal law.

The natural environment as a victim in the Ukraine war

The natural environment is a major loser in any armed conflict. History is full of examples where the environment was a prime victim of warfare. The environment has even been used as a means of warfare, such as when belligerents apply scorched earth tactics, pollute their enemy’s water supply, or use biological or chemical weaponry directly in combat. Grave environmental harm resulting from war is evident once again in the current war in Ukraine. While the environmental damage cannot be tied to any single event, it stems from the impact of bombs and other explosive projectiles, attacks on fragile infrastructure and industry, as well as secondary causes ignited by hostilities, such as wildfires.

In Ukraine, incidents damaging the environment have ranged from water, soil and air pollution and wildlife harm, to a potential radioactive catastrophe. During the first month of the invasion, many of the country’s most vulnerable ecosystems, which lie in active war zones, have been affected heavily by the fighting. Every bomb and missile launched contains waste and heavy metals, polluting the soil and potentially the groundwater. Relevant infrastructure closely linked to environmental matters may also be targeted as a means of warfare. There have been repeated attacks on fossil fuel infrastructure, electricity stations, water supply systems, and nuclear facilities. The country possesses strong industry, including chemical factories, steel plants and weapon factories. Those industries present a wide array of potential environmental hazards. One particular threat arose with an ammonia leak in a chemical factory that was caused by shelling.

The potential threat to the environment is not only of particular concern to Ukraine. Readers will know well that one of the worst environmental catastrophes of the 20th century took place in Ukraine: the explosion of the nuclear reactor of the Chernobyl power plant. The incident had effects far across the borders of Ukraine. During this war, Russian troops took control of Chernobyl in the first days after their invasion, leaving the world in the dark about its security. Furthermore, Europe’s largest nuclear power plant, Zaporizhzhia, was also directly attacked. Fears of another nuclear catastrophe are high. The potential harm resulting from a fatal hit on a nuclear power plant would cause significant transnational fallout. These consequences do not arise from the immediate effects of a potential nuclear disaster alone. The pollution of waterways and the air by radioactive particulates would likewise pose a global environmental threat.

Continue reading →
Posted in Ecocide, Environment, Guest Posts, Russia, Ukraine, War crimes | Tagged | 1 Comment

What an investigation into war crimes, crimes against humanity, and perhaps even genocide in Ukraine looks like

Posted on April 11, 2022 by Mark Kersten
(Photo: Reuters)

With every passing day, fresh allegations of war crimes, crimes against humanity, and even genocide in Ukraine emerge. A small battalion of organizations, international courts, and states have responded by investigating atrocities committed in the country in the hope that evidence can be marshaled and perpetrators held to account. But what does it take to investigate an international crime?

Investigations into international crimes are immensely difficult, especially when there is an ongoing conflict. It is fairly easy to point to the bombing of a theatre sheltering children in Mariupol or a massacre in a town or village like Bucha and determine that an atrocity has been perpetrated. Digital evidence collected and authenticated by an unprecedented number of investigation outfits have helped to expose these crimes. But investigations like that being conducted by the International Criminal Court (ICC) with the help of states like Canada aren’t only seeking to establish what happened; they are trying to find out who is most responsible.

Identifying those criminally liable for war crimes requires what investigators call “linkage evidence,” information that connects an act of atrocity to specific perpetrators. Investigators work backwards by stitching together a chain of evidence. But they are not looking to prosecute foot soldiers – the Russian officers shelling Ukrainian towns from tanks or jetfighters. They are trying to pin responsibility on more senior military and political figures. The hope of many is that that chain reaches all the way to the Kremlin and President Vladimir Putin himself.

Investigators will have to build a matrix of evidence that connects atrocities, perpetrators, and a structure of authority all the way up to Moscow. Doing so would illustrate a conspiracy among the Kremlin’s ringleaders to commit international crimes. But that won’t be easy. Neither Mr. Putin nor those in his inner circle have stepped foot in Ukraine during the war. So, how can investigators build a case against the Russian President and his coterie in Moscow?

A couple of strategies could be in play. In villages and towns attacked by Russian forces, there are invariably abandoned tanks and other military hardware. Their contents could yield important evidence. Every cellphone, computer, or manual left behind can help investigators build a case that reaches further up the echelons of power.

Continue reading →
Posted in Crimes against humanity, Genocide, International Criminal Court (ICC), Investigations, Ukraine, War crimes | 3 Comments

States and the ICC must avoid creating a two-tier justice system

Posted on April 7, 2022 by Mark Kersten
Ukrainian soldiers in patrol on the front lines (Photo: Getty)

The International Criminal Court (ICC) has been asked – by forty-one states – to investigate allegations of mass atrocities committed in Ukraine. That’s no easy task. Nor is it cheap. In a show of unprecedented support for the ICC, a number of Western states have volunteered help to bolster the Court’s investigation. Should the ICC accept this support, or does it risk deepening the inequalities of international law and justice?

Investigating atrocities is difficult at the “best” of times, when evidence is readily available, investigations are well funded, and violence has subsided. The ongoing conflict in Ukraine presents far from ideal conditions, and the ICC is far from flush. The Court is a cash-strapped institution because many states, including some of those now sending it voluntary donations, have long insisted that its budget be restricted despite its increasing workload.

Soon after announcing the Court’s decision to open a war crimes investigation in Ukraine, ICC Chief Prosecutor Karim Khan asked the international community to offer support. A number of states answered Khan’s call. Among others, Lithuania, the United Kingdom, Canada, and France sent the ICC additional funds and/or their own legal authorities to support the probe in Ukraine. The level of support for the ICC’s investigation in Ukraine is impressive and could increase Ukrainians’ chances of finding justice. But many are asking: will such support for accountability be offered to victims of mass atrocities outside of Europe?

In answering this question, it is important to distinguish self-serving “whataboutism” from the pleas of those asking: “why not us?”.

The former is a vacuous tool of distraction, used by governments such as those of Russia and Israel to deflect from allegations of war crimes they themselves are facing. They and their backers insist atrocities should not receive scrutiny from the ICC because justice has not been meted in Iraq, Syria, or Afghanistan.

Continue reading →
Posted in Canada, International Criminal Court (ICC), International Criminal Justice, Israel, Russia, Syria, Ukraine | 3 Comments

Canada sends Investigators to Help the ICC out in Ukraine. Will it do any good?

Posted on April 5, 2022 by Mark Kersten
Destruction in Zhytomyr, west of Ukraine’s capital Kyiv (Photo: Getty Images/BBC)

Canada has announced that it is sending a team of Royal Canadian Mounted Police (RCMP) officers to support the International Criminal Court (ICC) in its investigation into war crimes in Ukraine. The move is unprecedented. No Canadian government has ever sent or seconded such a team, not even for other investigations that the country has pushed the ICC to conduct. What does it mean for the investigation, for the ICC, and for Canada’s role in pursuing justice for international crimes?

Earlier this month, forty-one-member states of the ICC, including Canada, referred the situation in Ukraine to the Court. It was a remarkable show of collective and symbolic support for an institution that only recently was battling severe and vindictive animosity from the U.S. over its investigation into alleged atrocities in Afghanistan.

In opening the Ukraine investigation, ICC chief Prosecutor Karim Khan asked for help and resources. A number of states followed through, with Canada now also jumping on board. On 28 March, Public Safety Minister Marco Mendicino announced that RCMP officers would be shipped out to support the ICC’s efforts. He stated that the Canadian team would assist in collecting and preserving evidence and interviewing witnesses.

Canada’s decision is a welcome one. The ICC is something of a cash-strapped institution. That is in part because states like Canada have insisted over the past decade that the Court’s budget should remain effectively frozen. This has frustrated advocates who lament that while these states ask the ICC to do work investigating international crimes, they don’t back it up with the resources required to undertake complex investigations. Placing money where its mouth is has not been Ottawa’s strong suit. In 2018, Canada joined a group of Latin American states in referring Venezuela to the ICC, but offered no money or investigators to conduct the investigation.

Many thus hope that Canada – and other states – are setting a precedent in bolstering their support of the ICC, not only in Ukraine, but in other situations of mass atrocities, like Myanmar, Afghanistan, and Palestine.

Continue reading →
Posted in Canada, Funding, International Criminal Court (ICC), International Criminal Justice, Russia, Ukraine, Universal Jurisdiction | Tagged , , | Leave a comment

Justice and Accountability for Ukraine – Combining Transnational and International Criminal Law

Posted on March 23, 2022 by Mark Kersten

Jill Coster van Voorhout joins JiC on this post examining the intersection between international criminal law and transnational criminal law. Jill is an Associate Professor of International and Transnational Criminal Law at the Faculty of Law, University of Amsterdam and a research fellow at the Amsterdam Center for Criminal Justice, the Amsterdam Centre for International Law and the Institute for Advanced Study. 

Anti-war protestors in Lisbon (Photo: AP)

“We are coming for your ill-begotten gains”, President Biden said during his 2022 State of the Union about his plans to seize yachts and luxury apartments from influential Russians with wealth parked in the United States. “Putin, The Hague is waiting for you” has been spray-painted on the road opposite the Russian embassy near the Lithuanian capital Vilnius. While both are resonating sentiments, they also serve as helpful illustrations of how discussions about transnational criminal law (TCL) and international criminal law (ICL) develop in parallel and with little interaction. These siloed approaches are unhelpful, because confiscated assets can be used as (financial) evidence for crimes committed in Ukraine and abroad, especially if the proverbial paper trail can be followed to those most responsible for the Russian invasion of Ukraine and the atrocities that we see daily.

This post is a call for an integrated TCL-ICL strategy. But it should not be misunderstood as though either field of law or their combination is a panacea, nor that they should replace political, economic and, most importantly, diplomatic tools. Rather, it is a request to specialists and students of TCL and ICL to think of what Hannah Arendt labelled “renewal” – our collective power of thinking of a better international rule of law.

President Putin’s Achilles’ Heel – His War Chest and Foreign Assets

Russian President Vladimir Putin’s Achilles’ heel could well be his war chest in the foreign reserves of the sanctioned Russian central bank and assets funnelled to countries with a stronger rule of law that offer legal protection. Putin could not hold such assets himself – and certainly not in his own name. For years, funds from the Russian State were syphoned out of the country through laundering schemes and was then spent in a small number of wealthy stable countries. This is why effectuated and announced sanctions against Russia include shutting the government and banks out of global financial markets, restricting technology exports and freezing and confiscating assets of influential Russians.

While this focus is important, we must also realize that we currently live in what Oliver Bullough has labelled “Moneyland”.  Money is borderless, while law stops at borders. Our best source of evidence of this free international flow of money is the few criminal prosecutions and relevant document leaks such as the Panama Papers, FinCEN Files, Paradise Papers, and, more recently, Suisse Secrets. Against this backdrop, we see a State like Switzerland, notorious for its banking secrecy during World War II and Russia’s annexation of Crimea, implement the above-mentioned sanctions. Legal, accountancy and tax firms also announced they ended their relationship with Russia’s government.

Continue reading →
Posted in Asset Recovery, Economics of Conflict, Guest Posts, International Criminal Justice, Russia, Transnational Criminal Law, Ukraine, Vladimir Putin | Tagged | 1 Comment